Supreme Court leak investigation ends with justices appearing as above the law

By | January 22, 2023

The New York Times reports:

Last spring and summer, employees of the Supreme Court were drawn into an investigation that turned into an uncomfortable awakening.

As the court marshal’s office looked into who had leaked the draft opinion of the decision overturning the constitutional right to abortion, law clerks who had secured coveted perches at the top of the judiciary scrambled for legal advice and navigated quandaries like whether to surrender their personal cellphones to investigators.

The “court family” soon realized that its sloppy security might make it impossible to ever identify the culprit: 82 people, in addition to the justices, had access to the draft opinion. “Burn bags” holding sensitive documents headed for destruction sat around for days. Internal doors swung open with numerical codes that were shared widely and went unchanged for months.

Perhaps most painful, some employees found themselves questioning the integrity of the institution they had pledged to serve, according to interviews with almost two dozen current and former employees, former law clerks, advisers to last year’s clerkship class and others close to them, who provided previously undisclosed details about the investigation.

Inside the court, justices are treated with such day-to-day deference that junior aides assist them in putting on their black robes. As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.

The investigation was an attempt by Chief Justice John G. Roberts Jr. to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.

On Thursday, the court issued a 20-page report disclosing that the marshal’s monthslong search for the leaker had been fruitless, and detailing embarrassing gaps in internal policies and security. While noting that 97 workers had been formally interviewed, the report did not say whether the justices or their spouses had been.

Public reaction was scathing: “Not even a sentence explaining why they were or weren’t questioned,” tweeted Sean Davis, co-founder of The Federalist, a conservative magazine.

A day later, the court was forced to issue a second statement saying that the marshal had in fact conferred with the justices, but on very different terms from others at the institution. Lower-level employees had been formally interrogated, recorded, pressed to sign affidavits denying any involvement and warned that they could lose their jobs if they failed to answer questions fully, according to interviews and the report.

In contrast, conversations with the justices had been a two-way “iterative process” in which they asked as well as answered questions, the marshal, Gail A. Curley, wrote. She had seen no need for them to sign affidavits, she said.

Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.

“They weren’t subjected to the same level of scrutiny,” said one court worker on Friday, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”

Internal examinations can build or sap an organization’s authority, said Glenn Fine, a former inspector general for the Justice Department who has conducted such inquiries, and more recently, has argued that the court needs a similar figure.

“Leak investigations are a double-edged sword,” Mr. Fine said in an interview. A thorough investigation can be a deterrent, but “an investigation that doesn’t solve a leak may embolden more leakers in the future.”

Failing to fully scrutinize the justices “just completely undermines the court’s credibility,” said Mark S. Zaid, a lawyer who often handles government investigations. “It sends a message of superiority that does not exist under the eyes of the law.” [Continue reading…]

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